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On May 13, 2008, the President submitted to Congress a proposed Agreement Between the Government of the United States of America and the Government of the Russian Federation for Cooperation in the Field of Peaceful Uses of Nuclear Energy (henceforth referred to as the U.S.-Russia 123 agreement) in accordance with the review requirements established under Section 123 of the Atomic Energy Act of 1954 (AEA), as amended. The United States has agreements for peaceful nuclear cooperation governing nuclear exports to nearly 50 countries, Taiwan, and the International Atomic Energy Agency (IAEA). Such agreements provide the framework and authorization for civilian nuclear cooperation, but do not guarantee that cooperation will take place or that nuclear material or technology transfers will occur. The proposed agreement with Russia would, among other things, establish the legal basis for the Department of Energy (DOE) to work with Russia on large-scale development of nuclear energy. However, owing to Russia's status as a nuclear weapons state, the size of its nuclear complex, and past proliferation concerns, including weaknesses in the Russian export control system, an agreement for peaceful nuclear cooperation between the United States and Russia raised a number of concerns among Members of Congress. Section 123 of the AEA (Section 123) identifies the key U.S. government agencies and sets forth the procedures for negotiating, proposing, and entering into peaceful nuclear cooperation agreements with foreign nations. Consistent with Section 123, the Department of State (State) is responsible for negotiating any proposed agreement, with the technical assistance and concurrence of DOE. After consultation with the Nuclear Regulatory Commission (NRC), State and DOE jointly submit the proposed agreement to the President, accompanied by the views and recommendations of State, DOE, and NRC. Section 123 also provides that State supply the President with an unclassified Nuclear Proliferation Assessment Statement (NPAS) for each proposed agreement, accompanied by a classified annex, prepared in consultation with the Director of National Intelligence that summarizes relevant classified information. The NPAS serves as an analysis of the proposed agreement to ensure compliance with provisions of the AEA as well as the adequacy of safeguards and other control mechanisms to ensure assistance furnished under the agreement is not used to further any military or nuclear explosive purpose.

We identified weaknesses in the process State used to ensure interagency consultation during the development of the classified NPAS annex that accompanied the U.S.-Russia 123 agreement. First, there are no formal guidelines or procedures governing the interagency consultation and review process used to develop 123 agreements and supporting documentation. Second, in part due to the lack of formal guidelines, the NRC Commissioners did not base their vote to approve the agreement on the final version of the classified NPAS annex, but instead relied on a draft version of the document. We found that the differences between the draft version NRC used to inform its vote and the final version of the classified NPAS annex were not merely editorial in nature. Third, ODNI officials told us the intelligence community's review of the classified NPAS annex would have benefited from additional time and that State did not provide the final version of this document to the intelligence community prior to the agreement's submission to the President to ensure that the intelligence community's views were adequately incorporated. In our view, these weaknesses need to be addressed to ensure adequate consultation of all key interagency parties. As a result, we are recommending improvements to the interagency review process, including establishing written guidance and ensuring adequate time for interagency consultations.

Recommendations for Executive Action

Status: Closed - Implemented

Comments: Section 123 of the Atomic Energy Act (AEA) identifies the key U.S. government agencies and procedures involved in negotiating, proposing, and entering into peaceful nuclear cooperation agreements. The Department of State (State) is responsible for negotiating any proposed agreement, with the technical assistance and concurrence of the Department of Energy (DOE). State must consult with the Nuclear Regulatory Commission (NRC), and it is State's consistent practice to include the Department of Defense (DOD) in the review process. Section 123 also requires that State prepare, in consultation with the Office of the Director of National Intelligence (ODNI), an unclassified Nuclear Proliferation Assessment Statement (NPAS) and a classified NPAS annex. The NPAS and its classified annex explain how the agreement meets the AEA's nonproliferation requirements, among other things. The President submits the proposed agreement and accompanying documents to Congress for review. The President must also approve the agreement and determine that it will not constitute an unreasonable risk to defense and security. In May 2008, the President submitted to Congress a proposed 123 agreement with Russia. Our June 2009 report (GAO-09-743R) reviewed the process by which the classified NPAS annex accompanying the agreement was developed. We identified weaknesses in the process State used to ensure interagency consultation during the development of the classified NPAS annex. We recommended that the Secretary of State, working with other federal partners, clarify how interagency participants will implement their statutorily assigned roles and responsibilities in reviewing 123 agreements. President Bush removed the proposed U.S.-Russia 123 agreement from congressional consideration in response to Russian military actions against Georgia, and President Obama resubmitted the agreement to Congress in 2010. As a result of the resubmission, Congress requested that we assess the extent to which our prior recommendations had been implemented, and we issued results in a September 2010 report (GAO-10-1039R). Our 2010 report found that State worked with its interagency partners to clarify how interagency participants will implement their statutorily assigned roles and responsibilities. Specifically, State created and its interagency partners approved procedures that establish a step-by-step process by which 123 agreements and accompanying documentation are to be developed, reviewed, and transmitted. For example, the procedures identify the documents that State will provide to specific offices within DOE, NRC, DOD, and the National Security Council for their review. However, we found that the procedures did not clarify ODNI's role. Congress took action to clarify ODNI's role in the NPAS review process. Specifically, Section 305 of the FY 2012 Intelligence Authorization Act (signed into law in January 2012) requires that ODNI prepare an Intelligence Community Addendum to each NPAS containing a comprehensive analysis of the country's export control system with respect to nuclear-related matters. The Senate report accompanying the Intelligence Authorization Act said that new role for ODNI is an effort to mitigate the GAO-identified problems and ensure that Intelligence Community concerns are more fully incorporated into each NPAS.

Recommendation: The Secretary of State should, working with the Secretary of Energy, Chairman of the Nuclear Regulatory Commission, and Director of National Intelligence, as appropriate, clarify how interagency participants will implement their statutorily assigned roles and responsibilities in the review process for 123 agreements and associated documents, such as the NPAS and classified annex that accompany 123 agreements.

Agency Affected: Department of State

Status: Closed - Implemented

Comments: Section 123 of the Atomic Energy Act (AEA) identifies the key U.S. government agencies and procedures involved in negotiating, proposing, and entering into peaceful nuclear cooperation agreements. The Department of State (State) is responsible for negotiating any proposed agreement, with the technical assistance and concurrence of the Department of Energy (DOE). State must consult with the Nuclear Regulatory Commission (NRC), and it is State's consistent practice to include the Department of Defense (DOD) in the review process. Section 123 also requires that State prepare, in consultation with the Office of the Director of National Intelligence (ODNI), an unclassified Nuclear Proliferation Assessment Statement (NPAS) and a classified NPAS annex. The NPAS and its classified annex explain how the agreement meets the AEA's nonproliferation requirements, among other things. The President submits the proposed agreement and accompanying documents to Congress for review. The President must also approve the agreement and determine that it will not constitute an unreasonable risk to defense and security. In May 2008, the President submitted to Congress a proposed 123 agreement with Russia. Our June 2009 report (GAO-09-743R) reviewed the process by which the classified NPAS annex accompanying the agreement was developed. We identified weaknesses in the process State used to ensure interagency consultation during the development of the classified NPAS annex. We recommended that the Secretary of State, working with other federal partners, clarify how interagency participants will implement their statutorily assigned roles and responsibilities in reviewing 123 agreements. President Bush removed the proposed U.S.-Russia 123 agreement from congressional consideration in response to Russian military actions against Georgia, and President Obama resubmitted the agreement to Congress in 2010. As a result of the resubmission, Congress requested that we assess the extent to which our prior recommendations had been implemented, and we issued results in a September 2010 report (GAO-10-1039R). Our 2010 report found that State worked with its interagency partners to clarify how interagency participants will implement their statutorily assigned roles and responsibilities. Specifically, State created and its interagency partners approved procedures that establish a step-by-step process by which 123 agreements and accompanying documentation are to be developed, reviewed, and transmitted. For example, the procedures identify the documents that State will provide to specific offices within DOE, NRC, DOD, and the National Security Council for their review. However, we found that the procedures did not clarify ODNI's role. Congress took action to clarify ODNI's role in the NPAS review process. Specifically, Section 305 of the FY 2012 Intelligence Authorization Act (signed into law in January 2012) requires that ODNI prepare an Intelligence Community Addendum to each NPAS containing a comprehensive analysis of the country's export control system with respect to nuclear-related matters. The Senate report accompanying the Intelligence Authorization Act said that new role for ODNI is an effort to mitigate the GAO-identified problems and ensure that Intelligence Community concerns are more fully incorporated into each NPAS.

Recommendation: The Secretary of State should, working with the Secretary of Energy, Chairman of the Nuclear Regulatory Commission, and Director of National Intelligence, as appropriate, establish written procedures to carry out the process used to develop, review, and transmit 123 agreements and associated documents. Such procedures should afford relevant members of the intelligence community an opportunity to review the final classified NPAS annex prior to any agreement's submission to Congress.

Agency Affected: Department of State

Status: Closed - Implemented

Comments: The Atomic Energy Act provides that proposed agreements for peaceful nuclear cooperation with foreign nations shall be submitted to the President jointly by the Secretaries of State and Energy after consultation with the Nuclear Regulatory Commission (NRC). The President then transmits the proposed agreement, along with its accompanying documentation, to Congress for its review. The integrity of the State-NRC consultative process is dependent upon NRC receiving the documents and information it needs in a timely manner. Our June 2009 report, GAO-09-743R, reviewed the process by which the classified Nuclear Proliferation Assessment Statement (NPAS) accompanying the U.S.-Russia nuclear cooperation agreement submitted in 2008 was developed. We found that:(1) there are no formal guidelines or procedures to establish how and when such consultations between State and NRC are to take place; and (2) the NRC Commissioners did not base their vote to approve the agreement on the final version of the classified NPAS annex, and the differences between the draft and final versions were not merely editorial in nature. We recommended that the Secretary of State, working with the Chairman of the NRC, ensure adequate time for consultation with NRC and provide for the NRC to be given the final versions of all necessary documents prior to any vote on approval for a nuclear cooperation agreement. President Bush removed the proposed agreement from congressional consideration in response to Russian military actions against Georgia, and President Obama resubmitted the U.S.-Russia agreement to Congress in May 2010.As a result of the resubmission, we updated our June 2009 report to assess the extent to which our recommendations had been implemented, and issued results in a September 2010 report (GAO-10-1039R). Based on this, we found that State and NRC implemented our recommendation when the U.S-Russia agreement was resubmitted in 2010. Specifically, we reported that NRC officials said that on the basis of their experience with the agreement process in 2008, they asked State for at least 2 weeks to review all proposed nuclear cooperation agreements, and that State provided NRC with the 2 weeks they requested. Further, NRC developed procedures, in consultation with State, to guide its review of the U.S.-Russia nuclear cooperation agreement resubmitted in 2010. Both NRC and State officials attributed the increased collaboration between the two agencies during the 2010 review process, in part, to these procedures. In 2010, State clearly marked draft documents as such and provided NRC with the final versions of the documents to ensure the Commissioners based their vote on the same documents that State provided to the President.

Recommendation: The Secretary of State should, working with the Secretary of Energy, Chairman of the Nuclear Regulatory Commission, and Director of National Intelligence, as appropriate, ensure adequate time for consultation with NRC and provide for the commission to be given the final versions of all necessary documents prior to any vote on approval for, and submission of its views and recommendations on, a 123 agreement.